Delhi District Court
State vs . Shamshuddin on 16 August, 2011
IN THE COURT OF SHRI I.S.MEHTA,
DISTRICT JUDGE & ADDITIONAL SESSIONS JUDGE
INCHARGE SOUTH WEST DISTRICT, DELHI.
Session Case No. : 7/2011
Date of Institution : 3.6.2011
Date of Decision : 16.8.2011
State Vs. Shamshuddin
S/o Sh. Mehdi Hassan
R/o 366, Jhuggi, S.G. Camp, NIA, Phase-1
Naraina, Delhi.
FIR NO.: 156/2003
Police Station : Naraina
Under Section: 399/402/34 IPC
For State : Sh. Devinder Kumar, Ld. Chief
Prosecutor on behalf of the State.
For Accused : Sh. Parkash Mulchandany, Ld.
Amicus Curiae, Adv. On behalf of the accused.
JUDGMENT
1. Accused Shamshuddin along with his four associates, namely Dharmender @ Parmod (convicted vide judgment dated 1.4.2006), Kamlesh and Dharamdev @ Dharamvir, (convicted vide judgment dated 6.12.2006) and Zila Singh @ Ambey (since expired), is facing trial for offence under Section 399/402/34 IPC for assembling, in a park, opposite A-76, Naraina Industrial Area, Phase- I, and making preparations for committing dacoity at Deewan steel situated at Z-76, Loha Mandi and all the accused persons were armed with deadly weapons.
2. Precisely, the brief facts stated are that on 23.8.2003, a secret informer came to the police station and informed SI Sameer Srivastava that 4-5 notorious persons, armed with illegal weapons, are sitting inside the park, in front of A-76, NIA Phase-I, Naraina and are planning to commit dacoity at Deewan Steel and if raid is conducted, they could be apprehended. SI Sameer Srivastava SC No. 7/2011 Page 1/7 immediately, formed a raiding party comprising of HC Vinod Kumar, HC Nihal Singh, HC Mahender Singh, Ct. Narender Singh, Ct. Rati Ram, Ct, Inderjeet, Ct. Jayveer, Ct. Virender, Ct. Anil. All the raiding party members along with the secret informer boarded in a government vehicle i.e Tata 407 bearing registration No. DL 1L D 3637 and reached to the spot i.e in the park opposite to A-76, NIA Phase-I. At about 6.50 pm, SI Sameer Srivastava, disclosed the said secret information to 4-5 passersby and requested them to join the raiding team, but none agreed and went away without disclosing their name and address. At about 7.30 pm, 4-5 persons, came from the side of Loha Mandi and entered in the said park and started talking with each other. The secret informer pointed out towards those persons. Ct. Narender, who was in Civil uniform was deputed to overheard the conversation of those 4-5 persons and remaining members of the raiding party surrounded the park from all sides. After hearing their conversation, Ct. Narender came and told that those persons are planning to commit dacoity at Deewan Steel situated at Z-76, Loha Mandi and are also saying that they are having sufficient arms and ammunitions and in case anybody interferes or objects, they will shot that person. At about 7.45 pm, SI Sameer Srivastava with the help of other members of the raiding party, apprehended all the five persons who were sitting in the park. On interrogation, name of those persons were revealed as Dharamdev @ Dharamveer ; Kamlesh ; Dharmender @ Pramod ; Zila Singh @ Rakesh @ Monu @ Amba @ Raju and Shamshudeen.
SI Sameer Srivastava, Ct. Inderjeet and Ct. Naridner apprehended accused Dharamdev @ Dharamveer. HC Vinod and Ct. Jaiveer apprehended accused Dharmender @ Pramod. HC Nihal and Ct. Rati Ram apprehended accused Zila Singh @ Anbey. HC Mahender, Ct. Virender and Ct. Anil apprehended accused Shamshudeen. Personal search of all the accused persons was conducted. Accused Dharmender @ Parmod was found in possession of one country made pistol, which was kept on the left side of his pant.
SC No. 7/2011 Page 2/7From the possession of accused Zila Sigh @ Ambey, one button operated knife was got recovered from the right side pocket of his pant. From the possession of accused Shamshudeen, one button operated knife was recovered from the right side pocket of his pant.
Since, all the above named accused persons had assembled for making preparation to commit dacoity and were armed with illegal weapons SI Sameer Srivastava, prepared the rukka and got the present case registered under Section 399/402 IPC.
During investigation SI Sameer Srivastava, prepared the site plan, recorded the disclosure statement made by accused Dharmender @ Parmod, arrested all the accused persons in the present case and recorded the statement of the witnesses u/s 161 Cr.P.C.
On completion of investigation chargesheet u/s 399/402 IPC was filed in the court, against all the five accused persons.
3. The case was committed to the court of sessions by Ld. Metropolitan Magistrate vide order dated 16.10.2003.
4. On 20.4.2004, it was reported that accused Zila Singh expired on 1.3.2004, as such, charge for offence under Section 399/402/34 IPC was framed against accused Dharmender, Shamshuddin, Kamlesh and Dharamdev, to which they pleaded not guilty and claimed trial.
5. During the trial, accused Dharamdev pleaded guilty and accordingly, vide judgment dated 1.4.2006, he was convicted and sentenced.
Since the accused Shamshuddin remained absent on several dates, he was declared proclaimed offender vide order dated 6.12.2006. On the said date, the accused Dharmender and Kamlesh also pleaded guilty and they were convicted and sentenced vide judgment dated 6.12.2006.
SC No. 7/2011 Page 3/76. Thereafter, on 1.4.2011, accused Shamshuddin was arrested vide Kalandra U/S 41.1.(c) Cr.P.C and accordingly, he was produced before the Duty Magistrate, from where he was sent to JC. On 3.6.2011, on the directions of Ld. Metropolitan Magistrate, accused Shamshuddin alongwith Kalandara u/s 41.1.(c) Cr.P.C was produced before the present court for trial.
7. In order to prove its case, prosecution examined as many as five witnesses, which are as under:-
PW1. Ct. Narender, PW2 HC Mahender, PW3 HC Nihal Singh, PW5 HC Ramesh Chand and PW7 SI Sameer Srivastava.
Thereafter prosecution evidence was closed.
8. In the statement recorded under Section 313 Cr.P.C, accused Shamshuddin denied all the incriminating evidence and circumstances appearing in evidence against him and claimed false implication. However, accused opted not to lead evidence in his defence.
9. I have heard Sh. Devinder Kumar, Ld Chief Prosecutor on behalf of the State and Sh. Parkash Mulchandany, Ld. Amicus Curiae, on behalf of the accused and also perused the entire evidence as well as the material placed on record.
10. Ld APP has submitted that on 23.8.2003, accused Shamshuddin along with his four associates, assembled in a park, opposite to A-76, Naraina for making preparations to commit dacoity at Deewan Steel situated at Z-76, Loha Mandi and all the accused were apprehended by the raiding party members, with arms.
Ld APP has further submitted that in support of its case, prosecution has examined five witnesses in all and all the aforesaid witnesses have specifically and categorically supported the case of the prosecution, therefore, the accused Shamshuddin be convicted as per SC No. 7/2011 Page 4/7 the charge sheet filed against him.
11. On the other hand, Ld. Amicus Curiae has submitted the allegations against the accused is false. Nothing was recovered at the instance of the accused Shamshuddin. Accused was lifted from his house. The IO of the present case is bias.
Ld Amicus Curiae has further submitted that the prosecution has failed to prove its case beyond reasonable doubt. The alleged recovery from the accused, is planted and there is no sufficient ground and evidence on record to bring home the conviction of the accused and as such, accused Shamshuddin be acquitted from the charge framed against him.
12. Thus, from the above submission of the respective parties, following points arises for determination in this case:
(i) Whether the prosecution has been able to prove its case against the accused beyond reasonable doubt, if so, its effect?
(ii) Final order. 13. For the reasons to be recorded hereinafter, while
discussing the points for determination, my findings are as under:
Point No.1 : No. Final Order: Accused Shamshuddin is acquitted as per the operative part of the judgment.
REASONS FOR FINDINGS
14. The case of the prosecution is that on 23.8.2003, SI Sameer Srivastava received a secret information that 4-5 miscreants, armed with illegal weapons, have assembled at a Park, opposite to A-76, Naraina and they are planning to commit dacoity at Deewan Steel situated at Z-76, Loha Mandi. He then, formed a raiding party. The said raiding party rushed to the spot and accordingly, after SC No. 7/2011 Page 5/7 hearing the conversation of the accused persons, the raiding party succeeded in apprehending all the accused persons. From the possession of accused Samshuddin, one button actuated knife was recovered.
15. In order to prove its case, prosecution examined five witness in all.
As per the prosecution version, PW7 SI Sameer Srivastava, received the secret information. During the cross- examination, PW7 SI Sameer Srivastava has stated that he reduced the said secret information into writing but the same has not been placed on record. The prosecution in the present case has neither produced nor proved the said secret information, which was reduced into writing. There is no explanation regarding the same. The failure on the part of prosecution to produce and prove the said secret information, which was reduced down into writing, creates doubt regarding the receipt of the secret information in the hands of SI Sameer Srivastava.
16. All the witnesses examined by the prosecution are the official/police witnesses and their statements does not inspire confidence, particularly, when, statement of any of the police witnesses, who apprehended the accused persons, does not discloses which of the accused person spoke what.
As per prosecution version, Ct. Narinder overheard the conversation of the accused persons but during his cross-examination he admitted that he cannot tell, which accused spoke what. Further, PW 2 HC Mahender, PW3 HC Nihal Singh, and PW7 SI Sameer Srivastava, during their cross-examination have clearly stated that they have not heard the conversation going on between the accused persons.
SC No. 7/2011 Page 6/717. Apart from this, in the present case no public witness has been joined at the time of apprehension of the accused persons. There is no satisfactory explanation on the record, as to why public witnesses were not joined at the time of apprehension of the accused persons. Mere saying that the public witnesses refused to join the raiding party, does not shift the onus of prosecution to prove its case, particularly, in absence of written notice or any other step taken to show the transparency.
18. So far as the recovery of one button actuated knife from the possession of accused Shamshuddin is concerned, none of the police witnesses examined, has stated that they had offered their search to the accused persons before the search of the accused persons.
In the cross-examination, PW2 HC Mahender, PW3 HC Nihal Singh, and PW7 SI Sameer Srivastava have categorically admitted that prior to taking search of the accused persons, they have not offered their search to the accused persons.
Non offering of personal search, by the police personals to the accused persons, before their search, creates doubt whether the case property, as alleged to be recovered from the possession of the accused was actually recovered or was planted upon the accused.
In view of the above discussion, the prosecution case creates doubt and as such I acquit accused Shamshuddin of the charge framed against him. File be consigned to record room. Announced in open court on 16.8.2011.
(I.S Mehta) DJ & ASJ I/C SWD Dwarka Courts/Delhi.
SC No. 7/2011 Page 7/7